Although concerns persist about the quality of the jury pool, there continues to be scepticism about scrapping the jury trial system and Attorney General Anil Nandlall says that a case is still to be made to review the system.
After Dexter Marshall was found not guilty last month by a jury for the murder of Mark Caesar, Justice Roxane George, who presided over the trial, told him that he was very lucky, since there was relatively strong evidence in the case.
Marshall had been identified by the victim’s brother—an eyewitness—as one of the two men who gunned down Caesar in Charlestown, although he denied that it was him. The jury, whose verdict was unanimous, believed him.
Such cases are often cited by proponents of abolishing the jury trial and replacing it with a panel of judges, but most of the legal minds Stabroek News spoke with recently leaned towards straightening out the issues surrounding jury selection and retaining the jury system.
In neighbouring Trinidad and Tobago, it was recently announced that the government there is considering a proposal to abolish the use of juries for violent crimes, which continue to plague the country. (However, the rationale for the proposition, according to National Security Minister Jack Warner, is that it would allow judges more time and ensure quicker trial times. The announcement already raised serious concern among the opposition there.)
In Guyana, Senior Counsel Ralph Ramkarran last year suggested that jury trials should be abolished to reduce the possibility of guilty offenders escaping justice because of flaws and deficiencies in the justice system. He also opined that too many convictions were being overturned on appeal owing to several factors, including inadequate summing up by judges.
But both the Attorney General Anil Nandlall and the Director of Public Prosecu-tions Shalimar Ali-Hack were among those who rejected the suggestion.
A legal source with years of experience as a state prosecutor told Stabroek News recently that unless the current state of the country’s jury system is addressed, replacing it would be the best thing.
“The selection process is seriously flawed. We should get rid of the system and get three judges,” the lawyer said.
The lawyer explained that the jury selection process needs to be seriously reviewed, since currently the Registrar would send out notices to employers requesting that they provide names of employees who will be available to serve as jurors. Apparently, just a certain group of companies are approached when there is the need for jurors.
“The employers tend to send the ones who are of the least benefit to their company. We need a better standard of persons to sit on a jury,” the source said while suggesting that the Registrar should be provided with the list of elected voters by the Elections Commission. Persons between ages 18 and 60 years, inclusive of business people and professionals who can give advice or information based on their own experiences, should be the persons singled out. Another criterion is that the members of the jury must be living within a perimeter from the location of the court.
“If there is no revamp of the process then I would say let three judges sit and try the case. In that way we will have faster trials,” the source said adding that three judges will be less contentious. Further, the panel of judges, the source said, can put their experience and wisdom together and come up with a satisfactory decision. “They will also be able to grasp the points made by the defence counsel in the matter, something that the members of a jury might not be able to do,” the source argued.
Speaking from experience, the lawyer noted that there was a case where a judge summed up for six hours and after four hours of deliberation a juror came out and said that she did not understand what was said. “The ignorance is shocking,” the source noted, while adding that sometimes the jurors are chatting and texting during trials and have to be repeatedly spoken to by the judge.
“Older people are preferred because they have experience and some common sense. The young people are not focused and are not serious about jury duty,” the source added.
Stabroek News was told of situations where persons appear to serve in successive sessions. The law, however, states that one cannot serve in successive sessions; there must be a two-year break.
‘Interest of justice’
Nandlall told Stabroek News that the legal system recognises that a man should be judged by his peers—the principle which led to trial by jury—and he noted that there nothing to suggest grounds for this system to come to an end.
He said that Guyana has inherited a legal tradition which embraces certain fundamental pillars— one of them being that an accused is presumed to be innocent unless and until he is proven guilty by a fair and impartial trial.
This principle, he said, is embraced and recognised by all constitutions as a fundamental right.
Nandlall said that, therefore, the obligation of the state in a criminal trial is not necessarily to secure a conviction but to ensure “this presumed innocent person receives a fair trial and at the end of the process the interest of justice served.” He told Stabroek News that the interest and justice in this context have two components; that the accused is granted a fair trial and that once the evidence establishes guilt, that accused person must be convicted and sentenced in accordance with the law.
According to Nandlall, man judging his peers, for many constitutes an important ingredient of a fair trial, so much so when the Administration of Justice Act was passed in 1978 which abolished jury trials in a number of offences, “it created quite an unease and led to protest action by the legal profession and civil society.”
He said that one can point to very advanced countries which continue to retain jury trials even in civil cases, for example in the United States of America and the United Kingdom.
“Trial by jury has both its advantages and disadvantages but certainly a basis for abolition of jury trials cannot be a desire to increase convictions,” he further said, while adding that the reason must be based upon a belief that jury trials impede the justice system and results in injustice rather than justice being meted out.
“If there is empirical date to support such a belief then clearly it would be in the best interest of justice to review trial by jury. In Guyana, I am not sure that there is such evidence,” he said, adding that he could not overemphasise the fact that the administration of justice is fundamental to law and order and society itself and any “fundamental alteration to this system must necessarily involve an input from the wider society itself.”
He said that the gravity of the offence is irrelevant to the equation of justice. “What is important is that there is a fair trial and this fair trial concludes one way or another based upon the sufficiency of evidence. That principle must apply to cases of every kind,” he said.
He noted that if it is believed that juries are intentionally without just cause “rendering not guilty verdicts in cases where it is obvious that the accused should be convicted, then the jury system has become obstructive to justice.” Nandlall added that in such a case obviously there is a problem which required some review of the system. “Maybe that is the position in Trinidad I am not sure but in the absence of the relevant data I cannot say that such a position obtains to Guyana,” he said.
‘Not ready yet’
Former Chancellor Cecil Kennard also supported retaining the current system until there is evidence that another system would be better. “I am reluctant to say do so without a proper study,” he explained. “I have personally seen that judges tend to make up their mind very quickly whereas jurors… pull in their experience and common sense.”
He opined that juries should remain but there is need to ensure the quality of the people selected. “They must have some degree of intelligence. Sometimes a company would present a list and the people are not ready yet,” he said.
Kennard argued that in murder or fraud cases, for example, the jurors who are selected must have some background and experience that would assist them with making a final determination. He spoke about the length of time a case takes to be heard when it is sent to the High Court, noting that sometimes the case then becomes part of the backlog. “If there is not an adequate amount of judges then we are right back to square one. I am very reluctant to say that we should do away with jury trials. I believe that we should stick with it,” he said.
Attorney Nigel Hughes, who has appeared in high profile criminal cases, also believes that trial by jury should not come to an end as the practice remains one of the foundations of the criminal justice system.
Hughes also believes that when persons reach a certain level of qualification, they tend “to lose touch with what is happening in the street.”
He said that if one wants to address the issue of prosecutions not being successful, then the fault lies with the quality of investigations, including the gathering of scientific evidence. Hughes said that he prefers to examine those issues before heading in the direction of ending jury trials.
He said that in a case where there is a threat of influence, for example in narcotics cases, then the jury should be completely sequestered. “Until we look at these [issues], we should not be looking at abolishing jury trials,” he stressed.
